FICA Presented by: Robert Krautkramer

Terms and provisions “Risk based approach”

Every accountable institution (AI) (which includes property practitioners and attorneys) must have a system in place which enables it to assess whether a client is possibly laundering money or financing terrorism, using a risk based assessment.<br>

What does this mean exactly? Every AI must: Register with the FIC as an AI.
Have a Risk Management Compliance Programme in place (RMCP)
Ensure that all staff who deal with clients, are regularly trained to comply with their specific RMCP;
Ensure on going due diligence with long standing clients;
Ensure identification of beneficial owners of legal entities;
Ensure their staff understand what money laundering / anti proliferation (manufacturing of goods that can be used in the manufacturing of weapons of mass destruction)
Ensure their staff know how to conduct due diligence on how to assess the risk that a client is financing terrorism or laundering money;
Have checks and balances in place to ensure that their RMCP is being adhered to;
Report suspicious transactions and cash threshold transactions of R50 000 or more.<br>

Steps to address the threat of greylisting In May 2022 the PPRA issued a memorandum to the industry that it needs to step things up.
After conducting some audits it came to the conclusion that PPs were not doing enough to properly assess the risk of money laundering.
In other words, not enough “reasonable steps” were being taken to determine whether, once a business transaction had commenced, there was a risk of ML/FT.
Far greater emphasis was placed on “reasonable risk assessment”.<br>

FIC revs things up! Then in August 2022, NEDBANK was fined R35 000 000 (of which R15 000 000 was suspended). Effectively it had to cough up R20 million for not being FICA compliant, in that it:

Was found to be lacking in having measures in place to extract the correct data that would allow it to accurately or timeously assess the risk of the financing of terrorism or money laundering; (R3 000 000 effective fine, R2mill suspended)

Was found to be lacking in its record keeping; (R2 000 000 effective fine; R3 mill suspended)

Was found to be lacking in reporting cash thresholds of R25 000 (as it was then – this has been changed to R50 000) – R15 000 000 effective fine; R10mill suspended)<br>

Grey listing since Feb 2023 This means the FATF (Financial Action Task Force which is the international organization that overseas FICA) decided that SA’s systems were not up to scratch and needed review and adjustments.

It means we are no longer seen to be FIC compliant which exposes SA to:
the risk of less foreign investments;
it creates challenges for SA businesses to access international finance services;
If we want to invest in FIC compliant countries we must provide far more details as to the source of our wealth.
In essence it makes it far more difficult for Safricans to invest or conduct business in such countries.<br>

Changes since grey listing In March 2023 Directives 6; 7 (not applicable to PP’s unless you also do mortgage origination) and 8 were issued by FIC

Directive 6 requires all non-financial AI’s (such as PPs and attorneys) must complete an on line assessment wherein they submit information regarding their understanding of money laundering, terrorist financing and proliferation financing risks. (Manufacturing of goods of mass destruction – i.e. bombs)
DEADLINE is 31 May 2023.<br>

Changes since grey listing. Directive 8 requires all AI’s to:

Screen prospective and current employees for competence and integrity periodically, in a risk-based manner.
Screen all such employees against the UN Security Council sanctions list / TFS (targeted financial santions list)
Provide for, and record, the manner in which screening for competence and integrity, as well as the manner in which scrutinising of employee information against targeted financial sanctions lists will be conducted.
Keep a record of the outcome of such screening.
Be able to make these records available to the FIC or a supervisory body upon request
IMPLEMENETATION DATE WAS 31 MARCH 2023<br>

How does one comply with Directive 8 At MM we incorporated the following changes to our RMCP:
No person may be employed by the firm without a comprehensive CV being filed in his/her personnel file detailing all past working experience and qualifications.
All future employees are to be screened under the UN security council checklist before employment may be confirmed. Any such person who is found to be listed may not be employed.
All current employees are to be screened once every 2 years as from 1 April 2023.
All attorneys and directors are to be screened annually as from 1 April 2023.<br>

Directive 8 cont… All future employees and attorneys and directors are to confirm whether they
are politically connected to any domestic or foreign prominent public official
(DPO or FPPO) or whether they have been thus connected, within the past 12
months.

All current employees; attorneys and directors, are to confirm every 12
months whether they are related to any such individuals.

All current employees; attorneys and directors had to confirm by 15 April 2023
that they have not ever been convicted of any crimes involving money laundering,
dishonesty or theft.<br>

Directive 8 cont… All future employees; attorneys and directors are to confirm that
they have not ever been convicted of any crimes involving money
laundering, dishonesty or theft, before their appointment as such
may be confirmed.

Any person found to be listed on the UN sanctions list or who has
been convicted of such an offence shall be immediately suspended
with pay, pending investigation and possible disciplinary sanction.

Every staff member must attend FICA training annually and
complete a form to confirm this.<br>

BASICS REVIEW: AT WHAT POINT DO YOU FICA SOMEONE? At the commencement of a business transaction:

This means only once a sale or lease becomes FINAL AND BINDING.
However we suggest you do this ASAP - FROM THE START, i.e.
When taking a SOLE mandate; or
The moment an offer has been accepted, whether suspensive or not.
You may not deal with ANY funds without full FICA<br>

Who is actually my client? Buyers and sellers
Landlords and tenants
Listing and selling agent must FICA both parties.
Referrals – if an agent merely refers a buyer or seller he/she is not the one concluding a transaction – therefore no FICA required by that agent.<br>

May I rely on my colleague’s FICA? We talk of a primary AI and the other one is then the secondary AI.
Under the old FIC Act, there was an exemption which allowed one AI to rely on another. That exemption has been WITHDRAWN.
However since FICA is now risk based, you may rely on the other FICA but remember this: If it is subsequently found that the one party should have been reported, you cannot hide behind your colleague’s FICA.<br>

Two specific categories of suspicious persons DOMESTIC PROMINENT INFLUENTIAL PERSONS (DPIPs)

and

FOREIGN PROMINENT PUBLIC OFFICIALS (FPPOs)<br>

Domestic Prominent Influential Person This definition includes all senior government officials and politicians, royals and traditional leaders, senior civil servants, judges, ambassadors; high-ranking officers in the military and senior officials in companies who are doing business with government includes known family members; close associates and mistresses!
THESE ARE NOT DEEMED AS HIGH RISK BUT MEASURES MUST BE TAKEN TO DETERMINE THEIR SOURCE OF WEALTH<br>

Foreign Prominent Public Official This is a person who is a foreigner and royalty; or a senior government official; or a senior politician; or a senior executive of a state owned entity; or a high-ranking member of the military and includes known family members; close associates and mistresses!
THESE PEOPLE ARE AUTOMATICALLY DEEMED TO BE HIGH RISK AND EXTRA CARE MUST BE TAKEN TO ASSESS THEIR RISK PROFILES, I.E. TO DETERMINE THEIR SOURCE OF WEALTH AND FUNDS TO BE USED IN A TRANSACTION.
NB – YOU MAY NOT TRANSACT WITH THEM WITHOUT SENIOR MANAGEMENT’S CONSENT.<br>

When must we terminate a transaction? The UBER Villains! If a person / entity is identified as a sanctioned person you may not transact with him/her/it.

If you KNOW that the persons is laundering money or financing terrorism.<br>

CASH DEPOSITS OF R50 000 and upward Any receipt of R50 000 or more in cash (in hand or by way of bank deposit) MUST be reported.

WHAT IS CASH?

Any legal coin and/or paper money (local or foreign currency); and
Travelers Cheques
Does NOT include EFTs.<br>

R50 000 cash payments continued The Bank must report any R50 000 cash deposit AND the agency within 2 business days.

Includes a series of cash transactions amounting to R50k ormore within the space of 24 hours


AS SUCH: Check your bank statements DAILY.<br>

What test will the FIC apply in deciding whether I should have identified a suspicious transaction? Section 1(3) of Prevention of Organised Crime Act (POCA) makes it clear that it is a criminal offence not to report to FIC under circumstances when:

When any other reasonably diligent and vigilant person;
With the same skill, training and experience;
Would have known or suspected it.<br>

Examples of suspicious transactions and circumstances: When a seller stands to make a big loss and is unphased by it.
Sellers/landlords who refuse to provide original banking statements.
Payment of rental or proceeds of sale into unrelated 3rd parties’ account.
Refusal to disclose source of funds to buy cash.
Commission that is excessive or out of the norm.
Multiple cash deposits (even of less than R50k) at multiple banks over a few days.
Money comes from a crypto trading account.<br>

Best is to do a search on all cash buyers or buyers paying deposits https://www.un.org/securitycouncil/search/node
Google all your cash buyers whether South African or foreign.
When source of funds is given as inheritance; sale of shares; sale of property; crypto trading; savings – ask whether the client can provide proof. If the answer is a deadset NO, that must trigger suspicion.
DO NOT BE AFRAID OR SHY TO ASK QUESTIONS! YOU DO NOT HAVE A CHOICE ANYMORE!
Foreign Secretary of Finance case scenario – R15 000 000 cash sale. SA Trust. Founder is a secretary of finance for a neighbouring African country. But he is not a trustee himself. Nominated trustee says money comes from a family run business which funds the Trust. I ask for a letter from the COMPANY auditor veryifying this. I get a letter from the TRUST auditor saying the money is from rentals and loans by the trustees. Bank statement for the Trust showed over R18 000 000 income in January 2023 alone. I demanded to know where these funds came from. Trustee went dead quiet. I demanded a letter from the auditor that he has personally verified the source of funds as being legitimate and warned him that I would refer that to the FIC if we are audited. HOW DOES ONE ASSESS RISK?<br>

Use a points matrix assessment sheet.
EVERY transaction should contain a matrix sheet duly completed for EVERY client / seller/ buyer as proof that an assessment was done.
Whenever the points do go above 50 (JUST A SUGGESTION), the Fica compliance officer should be advised who must then make a decision whether to report the transaction to the FIC as being suspicious.
Reports to be filed within 15 days of becoming suspicious How to assess risk cont …<br>

(INSERT COMPANY NAME) RISK PROFILE CHECKLIST SCHEDULE 3<br>

(INSERT COMPANY NAME) RISK PROFILE CHECKLIST SCHEDULE 3
continued<br>

How do we report cash / suspicious transactions? If you suspect anything report it to the compliance officer/senior management who must decide whether to report it as suspicious or not.

Responsibility rests with senior management not you as agent.

Once you have reported it to senior management, you cannot be held accountable

Reports are done ONLINE at: www.fic.gov.za<br>

What are the consequences of reporting? If you SUSPECT money laundering/financing of terrorism: You may carry on with the transaction once reported.

But if you KNOW:

You may NOT continue with the transaction

It will be a criminal offence to continue

i.e. WALK AWAY<br>

When you have a once off transaction where the value is under R5000.

Example: a valuation.

BUT if you DO suspect anything untoward, you MUST STILL report it. When is FICA not strictly required?<br>

It all depends on which type of person you are dealing with:
Natural persons
Companies/NPO
CC
Trust
Partnership
Executor/Curator
Church

FOLLOW THE MM QUESTIONAIRE WHICH LISTS EVERYTHING NEEDED What is needed to FICA someone?<br>